Over at Marginal Revolution, Tyler Cowen has an interesting post on WIPO copyright proposals for culture. Folklore is the genesis of his discussion and he then proceeds to throw down a challenge that I cannot sufficiently meet. Can you?

Professor Cowen asks: By what economic reason - excepting an argument that "we cannot trust their courts" - should we not allow copyright protection for folklore?

It seems to me that the exercise of a right requires excludability. If I cannot kick you off of my land, then it is not really my land, is it? By extension, if I cannot explain in advance what aspects of folklore or culture are mine and mine alone, it is hard to assert a right to them. In a related manner, a copyright requires a specific description of the work. That is, copyrights are fixed and limited. A people's folklore does have an edge - the Celtic mythology is different than the Norse - but the edges are quite blurry. It is hard to say that a story about a sailor and his long-neglected and lovely wife could be exclusive to any seafaring nation.